XXIV on Insolvency Judgments – January 2013

in association with Cork Gully

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In this edition of our quarterly newsletter we cover the conjoined Supreme Court decisions in New Cap Re-insurance and Rubin v Eurofinance. The former case was decided on the narrow basis that submitting a proof and attending creditors meetings amounted to submission to the jurisdiction of the Court overseeing the liquidation. In the latter case, as predicted in this newsletter last year, the Supreme Court was divided. Teh majority held that the decision of the Court of Appeal had been wrong, and that there was no special rule upon which office holders could rely when seeking the the English Court’s assistance in enforcing overseas judgments, and the general conflict of law principles apply.

As well as this important case, we cover in this edition the interesting and important decision of Wright Hassall v Morris in the Court of Appeal on the personal liability of administrators, which may come as a surprise to many practitioners, as well as the decision of the High Court in Neumans v Andronikou about the (non-) recoverability of fees by a solicitor for a company opposing a winding up petition which was suspended due to the intervening administration of the company. These cases illustrate the value of looking for a solvent third party to underwrite liabilites and debts.

In Re Colliers International, the High Court resolved a conflict on the authorities about whether the Court could give retrospective authority to commence proceedings against a company in administration, and held that it could.

O’Donnell v The Bank of Ireland is an interesting decision on insolvency forum shopping, and moving COMI. The decision discussed the relevance of ensuring that third parties know when a person’s COMI has moved.

Re Teathers is a case which throws light on the viability of landlords’ claims in liquidation for reinstatement and repair following the surrender of leases by insolvent tenants. The cap in s.18 of the Landlord and Tenant 1927 remains relevant.

Finally in Tallington Lakes v Ancasta the Court of Appeal has reminded us of the risks of trying to shortcut the legal dispute resolution process by presenting a winding up petition on a disputed debt.

We also cover the new Practice Note, effective from 1 January 2013, relating to restoring companies under s.1029 of the Companies Act 2006.